Tag Archives: Supreme Court

Lifted Lamp’s Top Ten Blog Posts for 2013 & Poll for Topics for 2014

27 Dec

Top-10-trophy2

Looking back on what turned out to be a disappointing 2013 for the lack of progress on meaningful immigration reform and on the continuing pace of removals, we have tried to figure out what articles and stories most appealed to our readers.  Turns out that our readers were not as interested in the minute-by-minute accounts of progress, but rather came to Lifted Lamp for information about developments in the law that had a real impact upon their lives.  The provisional waiver, DACA, the de Osorio litigation were topics that continually received interest from our readers.  We hope to use this information to make this blog more useful and interesting to our readers.

We have compiled our 2013 Top Ten Blogposts and provide some thoughts on them after they have been written, published and we have received feedback.

10.  Leave it to controversy to be popular.  Our tenth most popular blog of 2013 is just over a month.  On November 25, we wrote about the young man who challenged the President to halt removals while waiting for immigration reform.  In “Does the President Have the Power to Stop All/Most Removals?“, we discussed whether the President can use his executive power to halt all deportations.  We decided that the President probably could not halt all deportations, but he could definitely stop a whole lot more.

9.   The provisional waiver, which has allowed the spouses of U.S. citizens to seek the required waiver of the ten year bar before traveling abroad, has been a continually popular topic on this blog.  In February 2013, we asked “Should I Apply for a Provisional Waiver or Wait for Immigration Reform?”  We answered that the provisional waiver was likely the better bet.  Turns out we were right.  Hundreds of people have received their residence through the provisional waiver, whereas immigration reform remains stuck in the quagmire of today’s politics.  While there is lots of talk about the prospects for reform in 2014, we continue to place our bet on the provisional waiver.

8.  The de Osorio litgation regarding the interpretation of the Child Status Protection Act has generated a lot of interest on this site.  We have chronicled the litigation from our submission of an amicus brief on behalf of undocumented youth at the 9th circuit and celebrated the victory in the 9th Circuit decision.  We implored the administration not seek review of the 9th Circuit’s decision in the Supreme Court and  shared our disappointment in the government’s decision to seek certiorari review in “Opportunity Lost: Administration Seeks Supreme Court Review of de Osorio.”  The Court heard arguments on December 12, 2103 and a decision is expected by June 2014.

7.  Also, in January 2013, we sought to explain some basics of immigration law as the popularity of the “go to the back of the line” school of thought dominated discussion of immigration reform.  In “What’s The Deal with the Immigration Line?“, we discussed how the visa numbers and quotas work and, more often, don’t work.  We had a lot of fun with this post and are glad that it was so well received.

6.  In February 2013, we highlighted a piece of legislation proposed by Senator Orrin Hatch (R-UT) called the I-Squared Act.  In “Immigration Reform 2013: Understanding the I-Squared Act,” we described Senator Hatch’s proposals to modernize and improve the visa process for high tech workers.  Much of Senator Hatch’s bill was folded into the Senate bill which passed the Senate in June 2013 and remains languishing in the House of Representatives.

5.  A surprise for number 5!  In March, we wrote about Congress’ belated re-authorization of the Violence Against Women Act.  In “Congress Reauthorizes VAWA But Falls Short on Immigration Provisions,” we discussed the history of the VAWA, improvements made in the 2013 reauthorization, and disappointments in the bill.  One of the bigger disappointments was Congress’ failure to raise the cap on U visas, a failure that has proven to be significant as the U visa cap for 2013 was reached in December.

4.  In January 2013, we discussed the development and roll-out of the provisional waiver process.  The provisional waiver has been one of the most popular topics on our blog.  And for good reason, the provisional waiver is one change to the immigration laws that has directly benefited immigrants in 2013.  While immigration reform has stalled, the provisional waiver has proven to be a way out of the catch-22 of ineligibility for adjustment in the U.S. and the ten year bar triggered by traveling abroad.  In “Q&A on I-601A Provisional Waivers,” we reported on the procedures that CIS would use in executing the provisional waiver process.

3.  The provisional waiver dominates the top three spots.  In “The Provisional Waiver and Removal Proceedings,” we discussed the process of seeking a provisional waiver for individuals in removal proceedings.  This topic still draws interest as I took a call yesterday from a lawyer who wanted our thoughts on a government motion to terminate removal proceedings so that the client could seek the provisional waiver.

2. Again, the provisional waiver draws a lot of interest.  In this post, “What is Extreme Hardship?“, we used our years of experience preparing applications for waivers to help illuminate this very subjective and squishy standard.  One of our most popular posts, this post is very similar to many of the consultations we do where we help people identify relevant hardship factors before applying for waivers.

numero uno1.  Our most popular post is “10 Facts About the Provisional Waiver Process.”  This is, by far, our most popular post.  It was our first post of 2013.  We are a bit curious as to its popularity given how many developments there have been in the provisional waiver process, but this post remains an informative introduction to the provisional waiver, what it means to accomplish, and the mechanics of seeking a waiver.

Thanks to all of our readers.  We have studied these results and will use this information to make this blog more interesting and useful to you.  Happy new year to all!

Mayorkas v. Cuellar de Osorio: CSPA at the Supreme Court

9 Dec

Supreme_Court_US_2010

Tomorrow, December 10, 2013, the Supreme Court will hear oral arguments in Mayorkas v. Cuellar de Osorio, reviewing the 9th circuit decision that reversed the Board of Immigration Appeals’ decision in Matter of Wang that rejected the applicability of the Child Status Protection Act (CSPA) to a large number of immigrants.  If the Supreme Court upholds the decision of the 9th Circuit, many aged-out young adults will be immediately eligible to apply for residence.  If the Supreme Court reverses the 9th Circuit, the BIA’s interpretation will stand and young adults who aged-out while their families’ petitions were stuck in the immigration backlogs will continue to wait for alternative paths to residence.

At the heart of the dispute is a common question in U.S. immigration law- how much deference does a court owe to an agency’s interpretation of matters within its expertise.  In a seminal 1984 case, Chevron v. Natural Resources Defense Council, the Supreme Court held that the answer to that question requires a two part analysis.  First, the court must determine whether Congress spoke clearly in the statute.  If Congress spoke clearly, the court must look to whether the agency faithfully implemented the statute’s directive.  The second part of the analysis comes into play if the court determine that Congress did not speak clearly and left the details of the matter to the expertise of the agency.  Where Congress spoke ambiguously, courts should defer to the agency’s special expertise so long as their interpretation was reasonable.  As a practical matter, if a court finds that Congress’ directive in a piece of legislation was ambiguous, it will likely uphold the agency’s interpretation.  Thus, in this case, the Court must decide whether the Child Status Protection Act was clear in how these aged-out young people should be treated.  If the court decides that Congress was pellucid in the language of the statute, it is likely that the court will reject the BIA’s interpretation and uphold the 9th Circuit’s decision.  In addition to the 9th Circuit, one other court, the 5th Circuit, has also rejected the BIA’s formulation.

Cuellar de Osorio’s lawyers will be arguing that Congress spoke with particular clarity when it passed the Child Status Protection Act and intended for all aged-out derivative beneficiaries of their parent’s immigrant petitions to be able to reclaim their original filing date rather than going back to the “end of the line” after turning 21.  They are supported by a brief filed by several Senators who explain to the Court that their intention in passing the legislation was to help as many aged-out children as possible.  The government seeks to muddy the waters and state that Congress was not clear and that the court should defer to the government.  The government warns of major disruption to the way visas are distributed if the Court rejects its interpretation.

Tomorrow, lawyers for the government and for the immigrants affected will get their chance to argue the case before the Supreme Court.  A decision will likely come in the spring of 2014.

Board of Immigration Appeals Affirms Same-Sex Marriage

20 Jul

Earlier this week, the Board of Immigration Appeals affirmed the sweeping-change in immigration law that the Windsor decision ushered in.  In Matter of Zeleniak, 26 I.&N. Dec. 158 (BIA 2013), the Board recognized that Section 3 of the Defense of Marriage Act (DOMA), found unconstitutional by the Supreme Court in Windsor, was not an impediment to recognition of same-sex marriage by immigration authorities.   In Zeleniak, U.S. citizen Serge Polajenko filed an immigrant partner for his husband, Oleg Zeleniak.  The Citizenship & Immigration Service (CIS) found that the couple had a legal marriage in Vermont, but denied the petition, citing Section 3 of the DOMA.   On July 17, 2013, the BIA sent the case back to the CIS stating that the CIS should only consider whether the marriage was entered into in good faith.  Thus, the BIA affirmed that Section 3 of DOMA, as a result of Windsor, was no longer an impediment to approval of a petition by U.S. citizen on behalf of his same sex husband, so long as the couple was married in a state where same-sex marriage is legal.

The BIA went further than the immediate issue at hand and sought to identify those areas of immigration law that are impacted by the Windsor decision.  The BIA stated:

The Supreme Court’s ruling in Windsor has therefore removed section 3 of the DOMA as an impediment to the recognition of lawful same-sex marriages and spouses if the marriage is valid under the laws of the State where it was celebrated. This ruling is applicable to various provisions of the Act, including, but not limited to, sections 101(a)(15)(K) (fiancé and fiancée visas), 203 and 204 (immigrant visa petitions), 207 and 208 (refugee and asylee derivative status), 212 (inadmissibility and waivers of inadmissibility), 237 (removability and waivers of removability), 240A (cancellation of removal), and 245 (adjustment of status), 8 U.S.C. §§ 1101(a)(15)(K), 1153, 1154, 1157, 1158, 1182, 1227, 1229b, and 1255 (2012).
Ironically, the BIA’s decision appeared the same day that former Attorney General Alberto Gonzales resurfaced from ignominy to publish a wholly unnecessary and surly opinion in the New York Times stating that Windsor did not compel immigration recognition of same-sex marriages.  Relying on 1982 decision of the 9th Circuit Court of Appeals, the former Attorney General stated that Congress did not intend to cover same-sex spouses when it used the term “spouse” in the 1952 Immigration & Nationality Act (INA).  As a lawyer who has tried to cite 9th Circuit laws in other parts of the country, I am well aware of the limited reach of a decision of a single appeals court.  You would think that the former Attorney General would be as well.  It is important to keep Mr. Gonzales’ point-of-view in mind, however.  Under our system, the Attorney General has the authority to overrule the BIA on any matter of immigration law. Which is why it is important that Mr. Gonzales, thankfully, no longer occupies that post.

Equality Under Immigration Laws Being Implemented and Realized

1 Jul

Popov-Marsh

The Supreme Court rocked the world last week by declaring Section III of the Defense of Marriage Act (DOMA) unconstitutional on equal protection grounds.  Section III forbade the federal government from recognizing same-sex marriages.  Thus, a legal same-sex marriage entered into in New York was valid under NY law, but did not provide the married couple with any federal benefits.  Activists have identified over 1100 ways that federal law provides a benefit to a married couple, all of which were unavailable until Wednesday, June 26, when Section III of DOMA was officially bid adieu.  Among the benefits now available to couples in same-sex marriages are a multiplicity of immigration benefits.  Of paramount importance in these benefits is the right of a United States citizen to sponsor her foreign spouse for residence.

Things have moved awfully fast since last Wednesday.   Shortly after the decision was announced, the White House stated, “I’ve directed the Attorney General to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”  The same day, Janet Napolitano, Secretary of Homeland Security who oversees immigration matters for the U.S., stated, “Working with our federal partners, including the Department of Justice, we will implement today’s decision so that all married couples will be treated equally and fairly in the administration of our immigration laws.”  On Thursday, US CIS Director Alejandro Mayorkas was ready at the American Immigration Lawyers Association conference when he was asked about DOMA.  Director Mayorkas informed the audience that the CIS has maintained a list of all denied same sex marriage cases since the Administration stopped defending DOMA in the courts in February 2011 and that CIS was “prepared to act,” in implementing the law.  By Friday, the first same sex marriage petition was approved by the U.S. CIS.  That is the happy couple above in matching shirts and beards.  Also, on Friday, outstanding immigration lawyer Matt Kolken was notified by CIS Director Mayorkas that the agency would no longer fight a denied same-sex petition on appeal by one of Matt’s clients.

Windsor

Then, over the weekend, it was PrSFide, and lots of joy occurred.  Edie Windsor, whose fight with the IRS over taxes on her deceased wife’s estate was the knockout punch for DOMA, served as the Grand Marshal of the NYC Pride parade and BR lawyers in San Francisco got into the spirit as well.

And, just today, Monday July 1, 2013, Secretary Napolitano issued the following statement: “After last week’s decision by the Supreme Court holding that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional, President Obama directed federal departments to ensure the decision and its implication for federal benefits for same-sex legally married couples are implemented swiftly and smoothly.  To that end, effective immediately, I have directed U.S. Citizenship and Immigration Services (USCIS) to review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.” The DHS also published two questions and answers.  First, the Department announced that individuals in legal same-sex marriages may file I-130 immigrant petitions on behalf of their foreign spouses and that those petitions would be handled identically to the opposite-sex petitions that CIS has long adjudicated.  In other words, gay married couples will have to demonstrate that they are legally married (no other marriages, marriage performed in a state that recognizes gay marriage) and that they are engaged in a bona fide marriage.  A bona fide marriage may be demonstrated by a shared residence, joined bank accounts, credit cards and insurance, knowledge of the other spouse, photos and other objective evidence.  Second, the CIS clarified that what is important for CIS’ recognition of a same-sex marriage is the law of the place where the marriage was performed and not where the petitioner and beneficiary live.  This means that a couple married in California (that’s right California now has gay marriage thanks to the other Supreme Court case that day on Prop 8), but living in, oh, let’s say our favorite whipping boy among the states of the union, Arizona, can have their marriage recognized by the federal government in immigration matters even though Arizona does not recognize it.  With extremely limited exceptions, the law of the state where the marriage took place is the law that matters for CIS recognition.  While questions remain about the implementation, we congratulate the Department on moving quickly to receive and approve same-sex marriage-based petitions.

The law has, once again caught up to the culture.  In law school, we read Bowers v. Hardwick, which upheld the right of a state to selectively prosecute homosexuals under state sodomy laws.  Now, less than thirty years after the shameful Bowers decision, (which was itself obliterated by the Supreme Court in Lawrence v. Texas by the pen of the same Anthony Kennedy who played hangman to DOMA), the Supreme Court has taken an enormous leap into helping this country realize its rhetoric of individual freedom and equal justice.

CIS is now accepting and approving marriage petitions by same-sex couples and it took less than a week.

 

Prerna Lal on CSPA and de Osorio Update

5 Jun

Despite being on leave from Benach Ragland to study for the California bar, Prerna Lal continues to provide valuable insight on the status of the de Osorio case.  De Osorio is the 9th Circuit case in which the court held that the Board of Immigration Appeals and the U.S. Citizenship & Immigration Service had interpreted the Child Status Protection Act wrongly in a way that excluded thousands of young people from the opportunity to obtain status with their families.  The government has sought review of the de Osorio decision before the United States Supreme Court, which will decide by the end of June, whether it will hear the case.  From Prerna’s blog:

Attorneys for de Osorio filed an excellent reply brief to the DOJ’s petition seeking certiorari on May 24. Usually, the petitioners can file a reply brief within 10 days but it appears that the Department of Justice did not file a reply brief in de Osorio yesterday. They are not obligated to do so. As of now, the government’s petition for review of the Ninth Circuit’s decision has been distributed for conference on June 20. I believe SCOTUS will probably vote to hear this, but I’d love to be wrong.

Empirical analysis suggests that it is rare for the Supreme Court to deny hearing a case when the Solicitor General requests review. While I think that the appeal is without merit, and almost frivolous, it only takes a law clerk to place the certiorari petition in the pool for review and four Supreme Court justices to agree to grant review.

If the Supreme Court grants certioriari, as in, agrees to hear the case, which we will know by June 24, 2013, then the stay of mandate continues, and no one can seek adjustment of status (or a green card) under de Osorio until the Supreme Court hears the case. Persons under the jurisdiction of Fifth Circuit (Texas, Louisiana and Mississippi), who are in removal proceedings, continue to be eligible for relief under Khalid v. Holder. New briefs would be filed, oral arguments held, and the Supreme Court would have until the end of June 2014 to issue a decision.

If the Supreme Court denies review, then the stay on mandate is lifted, and de Osorio becomes law nationwide because it was certified as nationwide class action lawsuit (and hence, there are no circuit split issues).

I hope everyone separated from their parents or adult children, get to see their family members soon.

Much love.

Thanks for keeping this on the front burner, Prerna.  We will continue to keep you informed as the Supreme Court considers the case.

How would a Supreme Court ruling striking down DOMA affect immigration?

27 Mar

Theya & Edie

One of the biggest immigration cases of the current Supreme Court terms is not about immigration at all.  Today, March 27, 2013, the Court heard arguments in U.S. v. Windsor, a case that is about the validity of a same-sex marriage and its recognition under U.S. law.  In 2007, Edie Windsor married her longtime partner, Theya Speyer in Canada, which allows same-sex marriage.  When Speyer died in 2009, Windsor was hit with a $363,000 tax bill that she would not have been required to pay if Speyer had been a man.  Federal law passed in 1996, the Defense of Marriage Act (DOMA), prohibited the federal government from recognizing Windsor and Speyer’s marriage and disallowed Windsor from claiming an exemption to the federal estate tax.  Windsor sued and prevailed in the U.S. Court of Appeals for the Second Circuit.  The government, now being represented by conservative members of the House of Representatives because the Justice Department refuses to defend the Act, sought Supreme Court review and the Justices heard the case today.  A decision is due by June.  According to Supreme  Court guru and editor of the SCOTUSblog.com, Tom Goldstein, there appears to be the votes to invalidate DOMA.  Given our confidence in Tom Goldstein’s analysis, we provide our own analysis how the demise of DOMA would affect immigration law.

First, DOMA prohibits the federal government from recognizing same-sex marriages legally performed in U.S. states.  Currently, there are nine states, Massachusetts, Connecticut, Vermont, New Hampshire, Maine, New York, Iowa, Maryland, Washington and the District of Columbia, that allow same-sex couples to get married.  Presumably some of those marriages would be between an American citizen and a foreign national.  However, while an American citizen can file an immigrant petition on behalf of their foreign national opposite-sex spouse, DOMA prevents the approval of an immigrant petition by an American citizen in a same-sex marriage.  Although the marriage between the two men or two women is perfectly legal in the state in which it was performed, DOMA relieves the federal government from recognizing that marriage.  Therefore, a U.S. citizen can not sponsor their foreign same-sex spouse for residence.

The inability of a U.S. citizen to sponsor their foreign spouse has led many binational couples to pursue very unconventional solutions to live together in the U.S. We have seen individuals take the long, difficult and expensive route to seek their residence because the simple path is foreclosed.  In addition, we have seen adoptions between partners, the establishment of businesses to bring their spouse-employee to the U.S., and desperate resort to fake marriages.  When a law causes good people to break the law, there is often something wrong with the law.  If DOMA is struck down, a U.S. citizen could file an immigrant petition on behalf of their same-sex spouse and have the same expectation of approval as a heterosexual couple has.

Second, same-sex spouses could serve as “qualifying relatives” for relief from removal.  Foreign nationals facing removal often can seek to avoid removal by applying for relief from removal.  Many of these forms of relief require a demonstration of hardship to a U.S. citizen or permanent resident spouse.  In the past, one member of a same sex couple could face removal and not be eligible to apply for relief due to the absence of a spouse, regardless of how long that individual were in a relationship with an American of the same sex.

Third, it may help multinational corporations transfer employees more easily.  U.S. law provides for temporary visa for foreign employees needed in the U.S.  Spouses and children of the foreign employee are entitled to derivative visas.  However, same-sex spouses do not get the same benefit and key employees do refuse transfer to the U.S. due to the inability of their same-sex spouse to join them.  DOMA’s prohibitions deprive U.S. business of workers they have determined they need.

DOMA’s demise would be a very good thing for the development of immigration law.  The pernicious effect of DOMA on the lives of thousands of Americans and their partners/ spouses has led Immigration Equality, the nation’s leading LGBT immigrant rights organization, to file suit on behalf of five gay binational couples challenging DOMA in the immigration context.  Those cases are on hold pending the Supreme Court’s decision in Windsor.  We are hopeful that the Supreme Court makes the Immigration Equality suits moot.

Benach Ragland Submits Brief in Mandatory Detention Case

21 Feb

Earlier this month, Benach Ragland authored a brief on behalf of the American Immigration Lawyers Association in the case of Michael Sylvain v. Attorney General before the U.S. Court of Appeals for the Third Circuit.  In Sylvain, the court must decide whether the Immigration & Nationality Act (INA) requires the detention of individuals convicted of certain offenses regardless of how long it has been since they were released from criminal custody. On behalf of AILA, Benach Ragland argued to the court that people released from custody prior to Immigration & Customs Enforcement’s (ICE) assumption of custody are entitled to a bond hearing where an immigration judge can make a determination as to whether they are flight risks or dangers to the community.  ICE argues that the INA gives immigration judges no authority to consider the release such individuals and that they must be detained for the duration of their removal proceedings regardless of how long it has been since they were convicted of an offense.

In Sylvain, the government defends a decision by the Board of Immigration Appeals (BIA) in Matter of Rojas.  In Rojas, the BIA decided that the mandatory detention provisions of the INA require detention without possibility of release on bond regardless of when that person was released from criminal custody.  However, the INA mandatory detention provision states that certain individuals shall be taken into custody “when the alien is released.”  The BIA decided in Rojas that that language did not limit ICE to apply mandatory detention to individuals regardless of when they were released.  Under Rojas, an individual would be subject to detention without any sort of review by a judge even if they had been released from prison a decade earlier.  As immigration judges around the country cited Rojas and explained that their hands were tied, advocates went to U.S. District Courts around the country and sought habeas corpus review.  Almost uniformly, the federal courts told the immigration service that Rojas was wrong and that the detained individual was entitled to a bond hearing.  The immigrant was then released.   ICE rarely appealed these decisions to the courts of appeals.

However, they did so in Hosh v. Lucero.  In that case, a district court judge found that Rojas was wrongly decided and ordered an immigration judge to hold a bond hearing.  However, this time, the government, sensing a possibly friendly court in the Court of Appeals for the 4th Circuit, a court known for giving the government wide berth to operate, appealed the judge’s decision.  The government’s gamble paid off and the Court of Appeals for the Fourth Circuit reversed the district court judge and deferred to the BIA’s decision in Rojas, foreclosing habeas relief in the states of the 4th Circuit (Maryland, Virginia, North Carolina, South Carolina and West Virginia).  Although district courts in the Fourth Circuit must follow Hosh, district courts outside of the Fourth Circuit have not found Hosh terribly persuasive.

Now this issue is before the Third Circuit Court of Appeals, which encompasses New Jersey, Pennsylvania and Delaware, in Sylvain.  A decision rejecting Rojas would create a split between the Third and the Fourth Circuits, possibly leading the way to Supreme Court review.  Oral argument is coming next month and we will report from the argument and when a decision comes down.